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Report on Recent Justice System Reform Bills

Health, the environment and justice have been keystones for Commonweal’s work for 43 years. Services for at-risk children was the first program at Commonweal. David Steinhart has led the Commonweal Juvenile Justice Program for more than two decades. He’s been working at the heart of California juvenile justice reform. I asked David to review the impact of the adult and juvenile justice reform acts that were signed into national law last year. In brief? A major step forward. Here is his analysis.

—Michael

U.S. Congress Passes Major Justice System Reform Bills

On December 21, President Trump placed his signature on two justice system reform bills sent to him by the Congress. The “First Step Act” revamps federal sentencing laws to reduce incarceration rates and to expand re-entry options for federal prisoners. The “Juvenile Justice Reform Act of 2018” reauthorizes the Juvenile Justice and Delinquency Prevention Act (JJDPA)—the cornerstone federal law that has promoted improvements in state juvenile justice systems since it was first adopted in 1974.

First Step Act: Bipartisan agreement is reached on U.S. sentencing reform

The “First Step Act” peels back harsh mandatory sentencing laws that have packed federal prisons with minor drug offenders and other low-risk inmates for too many years. The bill includes myriad changes designed to reduce terms for non-violent offenders and to support alternative-to-incarceration and re-entry programs. First Step applies only to federal prisoners (presently numbering about 180,000); it does not apply to those processed through state criminal justice systems. Among other provisions, the First Step Act will:

Support new alternative-to-incarceration options for qualified offenders including halfway house and home confinement alternatives.

Require that federal prisoners be placed within 500 miles of their families.

Establish new early release protocols based on expanded credits for good behavior.

Revise sentences for certain drug crimes in order to reduce disparities that adversely affect African-American defendants.

Support prisoner work and re-entry training programs.

Respond to needs of female prisoners (e.g., by mandating access to tampons and sanitary napkins and banning shackling during childbirth).

The passage of First Step represents an important course-correction for federal sentencing policies that have been out of alignment with progressive reforms being implemented at the state level. Proponents worked diligently over a span of years to cultivate both liberal and conservative support for reform. The measure drew strong bipartisan backing in a U.S. Congress otherwise prone to political division on major issues. One key House member summarized the result as follows: “Democrats and Republicans, the left and the right, progressives and conservatives, the ACLU and the Koch brothers, the House and the Senate partnering with Jared Kushner, Donald Trump and the administration…strike a serious blow against the mass incarceration epidemic in the United States of America.” President Trump heralded First Step as “a great bipartisan achievement” that will “make our communities safer and give former inmates a second chance at life after they have served their time.”

Reauthorization of the federal Juvenile Justice and Delinquency Prevention Act

Also on December 21, the President signed a reauthorization bill for the Juvenile Justice and Delinquency Prevention Act (JJDPA). The JJDPA provides federal funds to states that comply with the mandates and best practices contained in the statute. Over its 44-year life, the JJDPA has been a strong force compelling participating states to end draconian practices such as mixing juvenile and adults in jail facilities or locking up children for status offenses like truancy or running away from home.

The JJDPA has not been officially reauthorized since 2002, though its core mandates for states have remained in effect. Those core mandates include:

Reduction of “disproportionate minority contact” and race/ethnic disparities in the juvenile justice system.

In past reauthorization debates, youth justice advocates have pressed for reforms that would eliminate “valid court order” exceptions to the ban on locking up status offenders, increase mental health and other justice-related services and improve responses for tribal youth and special needs populations.

Finally, in 2018, advocates and Congressional leaders were able to agree on the terms of a reauthorization bill. The “Juvenile Justice Reform Act of 2018” maintains the core mandates of the Act while adding new elements including:

Extends the protection against housing juveniles in adult jails by including youth transferred to the jurisdiction of the adult court.

Makes it more difficult to incarcerate children for violations of court orders but does not fully eliminate the “valid court order” exception to the ban on secure lockup of status offenders.

Requires state plans submitted to the federal Juvenile Justice Office to describe how they are supported by scientific research on adolescent development and behavior. Plans must also incorporate best practices related to trauma informed care and involvement of families.

Puts limits on restraints that can be used on pregnant youth.

Requires states to gather and submit additional data on race/ethnicity, school-based offenses, and other juvenile justice populations; and requires OJJDP to consolidate research and produce guidelines for states on recidivism and other data and outcome measures for justice system youth.

Includes a reauthorization of the Runaway and Homeless Youth Act.

Like the First Step Act, the JJDPA bill drew bipartisan Congressional support. Republican Senator Charles Grassley—chair of the Senate Judiciary Committee and a cosponsor of the Senate reauthorization bill—voiced his approval by saying: “Kids in our juvenile justice system need safety, fairness and treatment that encourages respect for the law…. Our bill includes important new accountability measures that protect taxpayer dollars and prevent states from being rewarded when failing to provide the minimum standard of protections for minors.”

One perhaps sobering aspect of the otherwise welcome renewal of JJDPA is that the level of federal funds provided to states under the Act has declined significantly over the years. JJDPA funds go to states in two main blocks—Title II “formula grant” funds for core mandates and Title V funds supporting youth crime prevention programs. In FY 2002, the combined appropriation of JJDPA funds for Title II and Title V totaled $183 million. By FY 2018 this combined funding level had fallen to just $70 million. A companion federal juvenile justice grant program—the Juvenile Accountability Block Grant—was eliminated in 2014. Given the extensive plan and report requirements imposed on states, some states have questioned the value of continuing JJDAP participation as annual allocations have declined.

Despite questions about JJDPA funding levels, juvenile and criminal justice reform advocates who worked hard for reauthorization are applauding the outcome. Commonweal also salutes the JJDPA renewal as a validation of our own policy work, conducted over many decades, to promote and enforce JJDPA mandates in California to remove children from adult jails, stop the incarceration of truants and other status offenders, and expand community-based services for youth. Still, from both the state and federal perspectives, much more remains to be done to divert youth from unnecessary justice system involvement and to ensure fair treatment and positive outcomes for those who remain in the system.